Oregon Appellate Ct - April 2, 2014

by: Abassos, Alarson, Cmaloney and Alex Collins • April 4, 2014 • no comments

Burglary II – A structure Can Be a Adapted for Carrying on Business Absent Any modification to Accommodate the Public

A structure is a building, for burglary purposes, if it has been adapted for business, regardless of whether the particular business use is public or private. ORS 164.205. Here, defendant stole items from a trailer used to store business records and inventory. The court holds that although the trailer was not open to the public, it was still adapted for “carrying on business therein” because it:

• had been immobile for 18 years adjacent to the victim’s military surplus business
• was used during that time for storage of inventory and records
• was insulated to protect against moisture
• had “army surplus” painted on the side.

State v. Webb 262 Or App __ (2014).

Preservation – OEC 404 Issue Not Preserved By OEC 403 Argument

In a case about sexual abuse, the defendant’s step-daughter testified regarding a previous incident of sexual abuse that occurred in CA where the charges had been dropped. The defendant objected under OEC 403, stating that the testimony was overly prejudicial to the defendant. However, on appeal, the defendant renewed the objection under OEC 404 and State v. Johnson, 313 Or 189 (1992), which states that those acts must have been proved by a preponderance of the evidence to be admitted. The court holds that because the state was not put on notice of this argument and its burden to prove up the OEC 404 requirements, it would be unfair to the state to hold the objection as preserved. State v. Andrews 262 Or App __ (2014).

Incriminating Statements – Article I, Sec. 11 Rt to Counsel Extends to Factually Related Criminal Episodes

Once a person is charged with a crime, the 6th amendment right to an attorney's presence extends to the investigation of factually related criminal episodes where the state may glean incriminating evidence or statements. Here, defendant was charged with sexual abuse of a member of defendant’s family. While in jail and without notifying defendant’s counsel, the investigator interviewed the defendant regarding abuse of two other young females—also members of defendant’s family. The defendant made incriminating statements. The defendant’s counsel was entitled to notification of this interview because the criminal episodes were factually related — all similar conduct occurring at defendant’s home, against young females related to defendant, and investigated by the same detective. Consequently, defendant’s statements required suppression. State v. Prieto-Rubio 262 Or App __ (2014).

Prior Bad Acts to Prove Identity Require a Signature Element Only Attributable to the Accused

Under OEC 404(3), prior bad acts are admissible to establish identity when there is (1) a very high degree of similarity between the charged and uncharged crimes; and (2) the methodology is so distinctive so as to earmark the acts as the handiwork of the accused. Here, defendant was accused of stealing a car, trying to evade the police, and reversing into a patrol car after being boxed-in by the police. In the prior case, defendant did the exact same thing. The court holds that, although the two sets of crimes bear a strong resemblance, there is no signature element so distinctive that it earmarks the acts as the handiwork of the accused. The only remarkable detail of both cases is reversing into a patrol car. However that reaction to being boxed in and trying to escape "is not so distinctive that both crimes can be attributed to one criminal."State v. Arnold 262 Or App __ (2014).

Exclusionary Rule Doesn't Apply to Evidence Discovered for Reasons Unrelated to Illegality

If, during a traffic stop, an officer makes an inquiry unrelated to the traffic stop, the defendant must prove the existence of a minimal factual nexus between the evidence sought to be suppressed and prior unlawful police conduct. Here, an officer stopped the defendant for speeding and asked the defendant about the whereabouts of a wanted person. It was disputed if the officer asked the defendant about the wanted person immediately when he contacted the defendant, or after the officer asked for the defendant’s license. However, when the officer asked for the defendant’s license he saw the defendant remove her license from a tin which also contained a baggie that he believed had methamphetamine residue on it. The court held that defendant did not show a minimal factual nexus. The officer’s question about the wanted person had no causal relationship to the discovery of the methamphetamine. State v. Peters 262 Or App __ (2014).

A Trial Court's Ability to Correct a Judgment is Highly Discretionary

Pursuant to ORS 138.083, a trial court retains discretionary authority to correct a mistake or erroneous term within a judgment. Here, defendant asked the court to modify the judgment regarding an upward departure because it was based on a judicial, not a jury, finding. Even assuming that ORS 138.083 is an appropriate vehicle for such a modification, the judge had authority to deny the motion for policy or other reasons, with or without a hearing. Here, the judge had a hearing and was concerned about opening "the floodgates". Affirmed. State v Webb, 262 Or App __ (2014).

Identity Theft – Signing and Submitting a False Name at Booking is Conversion and Uttering

When a person signs a false name on booking documents and submits them to the police, there are sufficient facts to support identity theft. “A person commits the crime of identity theft if the person . . . utters or converts to the person’s own use the personal identification of another person.” ORS 165.800. The term “convert” means to appropriate dishonestly or illegally. The term “utter” means to put a document into circulation. Here, the defendant “converted” by signing a false name and “uttered” by handing in the documents with a false name. The court distinguishes signing and submitting a false name from orally giving a false name to an officer. See State v. Fields, 191 Or App 127 (2003). State v. Medina 262 Or App __ (2014).